New York’s got something for every taste and interest.

No matter what your sports or cultural bent… it’s here. There’s the NY Football Giants, the Rangers, the Knicks, the Yankees, the Mets, the Nets…. Heck, we even have the biggest tennis venue in the world, the US Open!

You can travel around the globe through NY’s wide assortment of international restaurants. Take your pick from the Afghan Kebab in Queens to Zoma, serving up the delights of Zimbabwe in Harlem.

Want an education?  Your choices could include Columbia, NYU, CUNY, Marymount Manhattan, The New School, St. John’s University, or any of the 64 colleges and universities throughout the state.

So it should come as no surprise that New York has a wide assortment of sex offenses in its penal code. Our diverse list includes sexual misconduct, rape, criminal sexual act, forcible touching, criminal sexual abuse, persistent sexual abuse, and more. But where is the definition for “consent?” And how is deception and fraud dealt with in Section 130.00 of penal law?  Hmmm….

The answer could be buried deep within the concept of 130.20, Sexual misconduct.

A person is guilty of sexual misconduct when:

1. He or she engages in sexual intercourse with another person without such person`s consent; or

3. He or she engages in oral sexual conduct or anal sexual conduct with another person without such person’s consent;

Sexual misconduct is a class A misdemeanor.

Rape in the third degree contains more language by which a case of rape by fraud should prevail. However, further legal interpretation by the state seems to have restrained this application to cases they have deemed to be date rape. In fact, most cases of rape by fraud are, indeed, cases of date rape. Instead of intoxicating or doping the victim, the offender vitiates their victim’s consent through duplicity. Since NY fails to define consent in its statutes, without explicitly stating that the use of fraud to induce sexual contact is a crime, undermining a person’s self determination (agency) by impersonating another individual or  by ripping off a condom when they had agreed to protected sex, is not a crime.

130.25 Rape in the third degree. A person is guilty of rape in the third degree when: . . . . . 3. He or she engages in sexual intercourse with another person without such person’s consent where such lack of consent is by reason of some factor other than incapacity to consent.

 § 130.25 Rape in the third degree.
    A person is guilty of rape in the third degree when:
    1.  He or she engages in sexual intercourse with another person who is
  incapable of consent by reason of some factor other than being less than
  seventeen years old;
    2. Being twenty-one years old or more, he or  she  engages  in  sexual
  intercourse with another person less than seventeen years old; or
    3. He or she engages in sexual intercourse with another person without
  such  person's  consent  where such lack of consent is by reason of some
  factor other than incapacity to consent.
    Rape in the third degree is a class E felony.

Both criminal acts depend on the definition of “consent.” In all fraud law, including New York State’s, only “knowing consent” is legally valid consent. Therefore, if a victim is defrauded of their knowing consent in NY State, sexual misconduct or third degree rape should apply. If my case didn’t go back 40 years, I’d file a complaint and test this theory.

Some of the most learned commentary on rape by fraud law comes out of NY State. A comprehensive treatise by Patricia J. Falk, Law Professor at Cleveland-Marshall College of Law, was published in 1998 in the Brooklyn Law Review. More recently, Daniel J. Slomnicki published his findings in NYSBA’s Law Student Connection.  Mr. Slomnicki has interned with both the Queens District Attorney and the Kings County District Attorney.

NY is the state in which I was personally defrauded of sex for three and a half years. That defilement had an extraordinary and permanent impact not only on my life, but also the life of my child, and our relationship.  I intend to make a difference in this state so that no one else suffers a similar fate. Stay tuned!